Derek Twigg: That is why we are looking at mental health pilots to see how we can develop a system around the country so that people can get treated near to home. Although we are currently offering the medical assessment programme at St. Thomas's, we pay travel expenses for someone to go there. That support is important. Our doctor there, Dr. Ian Palmer, who is a former Army medic, will be able to link in with the individual's GP to help to advise on the best course of treatment for that individual. If my memory serves me right, I think that I have written to the hon. Lady about this issue, and I urge her to advise her constituents to take that advice

Ann Clwyd: My right hon. Friend will know that, last week, we were pleased to welcome six Iraqi trade unionists to the House of Commons, and they all talked about improved security. There were two women among them—one from Basra, one from Baghdad—and they were concerned about the continuing intimidation and threats against women. Next time my right hon. Friend meets the leadership in Iraq, will he please impress on them the importance of saying that women in Iraq must be protected against threats and intimidation and that they have a role to play in the future of the country?

Nicholas Winterton: Will the appropriate Minister give an unequivocal commitment that future FRES vehicles, which have, of course, to be air-transportable, will have monocock V-shaped hulls, which deflect blasts, leaving the vehicle repairable after it has experienced an explosion? That is critical to the safety of our armed services personnel.

Jim Murphy: The total number of days available for the House to discuss the Lisbon treaty and the Bill to enact it has been the same as for the treaties of Nice Amsterdam and the Single European Act.

Kenneth Clarke: The Minister always makes comparisons with treaties that were much shorter and much less controversial, but does he not accept the point made by my hon. Friend the Member for Hertsmere (Mr. Clappison)? The Minister makes great play of the time that we have taken so far, but it has been largely taken up at the Government's insistence with general debates about European issues that have gone very wide of the treaty of Lisbon? The debates have been very familiar to many hon. Members; they have been about the merits and otherwise of various aspects of our European policy. Does he not agree that this experiment has been a failure and that we should have debated the amendments tabled by those hon. Members who, unlike me, disagree with the treaty's contents?

Jim Murphy: Mr. Speaker, I know that you will accept that I am simply responding to the interventions that I take. I shall give way to the hon. Member for Rayleigh (Mr. Francois). It is perhaps the last time that I shall give way, as I want to conclude the one paragraph that I mentioned in my response to the hon. Member for Castle Point (Bob Spink).

Gwyneth Dunwoody: I hope that my hon. Friend will make it clear that it was the Government who proposed the procedure: other people opposed it. The Government radically changed the way in which we are handling the Bill. That may be a good thing or a bad thing—in my view, it is an extraordinarily bad, selfish and rather unimaginative thing to do—but he should be proud of what he has done, because it was the Government's decision not to have amendments tabled in the normal way, not to proceed in the normal way, and to limit the discussion.

James Clappison: Is my hon. Friend aware that the Foreign Affairs Committee's analysis of the defence provisions of the treaty identified five important changes introduced by the treaty? The Committee found one change in which the Government's wording, which was taken directly from the treaty, was ambiguous and needed clarification. None of those matters have been debated, although they are important to this country's defence.

Nicholas Winterton: I am not sure that my hon. Friend should be concerned about his career—he should be concerned about the principle of what we do in the House and our ability to scrutinise.
	I should like to take up the matter to which my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke) and my hon. Friend the Member for Hertsmere (Mr. Clappison) referred. Is my hon. Friend the Member for Rayleigh (Mr. Francois) aware that Mr.Giscard d'Estaing, an author of the European constitution and past President of France, has said that the treaty contains all the critical elements of the constitution? Is it not true, therefore, that this business motion is inadequate and does not reflect the best interests of this House?

John Gummer: Will my hon. Friend be careful not to allow the Government to get away with the idea that they have misused the House's arrangements only in respect of the treaty of Lisbon to ensure that there is not proper debate of Bills? There has never been a time in which legislation has been so ill-debated, so ill-argued and therefore so ill-produced as since the so-called modernisation that the Government have carried through.

Mark Francois: My right hon. Friend has made a pertinent point, which I wish to reinforce. It is even worse when the Government constrain debate on a treaty to which this country would theoretically be committed for a very long time.
	I doubt whether the Government's motion today will cut much ice with Michael White of  The Guardian. On 22 February, he wrote in that newspaper, in an article entitled, "Lisbon debate rings hollow":
	"Labour's chief whip has persuaded MP's to vote to overrule their own standing orders. Instead of line-by-line debate which explores changes to foreign policy procedures, EU co-operation on crime or energy, at least half of each day is devoted to a 'themed' discussion, with debate on specific amendments tacked on later. Does procedure matter? No one would be allowed to change the rules before a football match or criminal trial."
	I also doubt that today's motion will impress Philip Johnston of  The Daily Telegraph, who, in a piece on 11 February entitled, "The debate on the Treaty of Lisbon is a scandal", argued about the procedure for debating treaties as follows:
	"Conventionally, this is done by tabling amendments to specific clauses and debating them in fine detail. But this is not happening and it is a scandal."
	He then went on to note:
	"When Mr. Brown was challenged about this in the Commons last week, he said 'We are considering the European Union (Amendment) Bill day by day in the House of Commons in great detail.' Day by day, but not line by line. The cynicism is breathtaking.

Gwyneth Dunwoody: In view of the unequivocal views quoted by the hon. Gentleman, can he explain why his Front Benchers laid down and allowed the Government to run right over them, and why the Liberals, who made their pathetic little mewling noise last week, have nevertheless continued to co-operate with the Government, who are determined that we should not debate the legislation as opposed to some of the ideas?

Mark Francois: I thank the hon. Lady. We have not laid down at all—we opposed the Government's motion and voted against it; that is why I deliberately read into the record the comments of my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer).  [ Interruption. ]

Mark Francois: My hon. Friend is entirely right. In days of yore, there use to be an offence of breach of promise, and the Government are most definitely guilty of that now.

Kenneth Clarke: I have long believed that, if we are to have timetabling, which apparently now applies to all Bills, it should essentially be for the Opposition parties to decide how best to use the time on the matters that most concern them. Does the hon. Gentleman agree that, if the Government had said to his Front Benchers and to my hon. Friend the Member for Rayleigh (Mr. Francois) that there were three days in which to cover the clauses that we are considering, and had allocated three generous timetables, the Conservatives, the Liberal Democrats and the nationalist parties could have reached agreement about the way in which to divide it so that the most important amendments, in the opinion of critics, would take up our time? Instead, we have the Government's best offer of what seems to them to be most convenient and right in dividing up the available time.

David Heathcoat-Amory: I beg to move amendment No. 39, in page 2, leave out lines 12 and 13 and insert—
	'(c) may be made only if a draft of the order has been—
	(i) laid before Parliament; and
	(ii) approved by a resolution of each House'.
	Clause 3 is, if one includes the schedule attached to it, the longest part of the Bill. Together they run to some three and a half pages. On that ground alone, it is worth studying in some detail.
	The clause is headed "Changes of terminology", which rather implies that these are technical matters, but I shall, I hope, show that it deals with substantive matters of importance. For instance, the schedule attached to the clause makes nearly 50 amendments to the European Communities Act 1972, the founding Act that has governed our relationship to the European Union ever since that date. Clearly, those are matters of substance.
	One of the purposes of clause 3 and its schedule is to delete references to "European Community" and replace them with "European Union". That is not a technical change; it is a matter of substance, because the two are not the same. To remind the Committee, when we joined the Common Market, as it was then called, there were three treaties: the European Coal and Steel Community treaty signed in 1951; the European Atomic Energy Community treaty, usually known as EURATOM; and the European Economic Community treaty, usually abbreviated to the EEC, set up by the treaty of Rome in 1957. Collectively, those treaties formed what were known as the European Communities.
	Since that time, the coal and steel treaty has expired and is no more. EURATOM still exists but is only of marginal significance—that is not to say that the European Union will not legislate on energy and atomic power; under the additional sections in the treaty of Lisbon, I anticipate that it will pass a great deal more legislation on that, but not through EURATOM. For the purposes of this debate, therefore, we can ignore that treaty.
	A separate treaty on the EU, the Maastricht treaty, renamed the EEC the EC, and crucially, added two intergovernmental pillars, the first dealing with common foreign and security policy, and the second with justice and home affairs. That was a critical and innovative solution, and in my view and that of many of my persuasion, the intergovernmental method of co-operation is to be preferred. It cuts out the monopoly of initiative enjoyed by the European Commission, and does not come under the jurisdiction of the European Court. But it allows for extensive international co-ordination and co-operation in tackling matters of common interest.
	Today, essentially, we have two treaties. We have the EC treaty, derived originally from the treaty of Rome, as then amended by the Single European Act, the Amsterdam treaty, the Nice treaty and so on. Separately, we have the EU treaty from Maastricht, covering the intergovernmental areas.
	The current treaty abolishes the EC. Article 1 of the treaty states:
	"The Union shall replace and succeed the European Community."
	Crucially, however, the EU will also include those previous intergovernmental policy areas that I have described, such as the common foreign and security policy and parts of criminal justice and policing.

Kelvin Hopkins: Terms are important, and people understand their significance. We have moved from a common market to a European Economic Community to a European Community to a European Union. Could it not be said that we are not far off becoming a Federated States of Europe?

John Gummer: My right hon. Friend is making the case that the use of the word "Union" and the change in terminology has greater importance than it is given. At the same time, however, he is trying to make the case that it is not of great importance to cease to have a constitution and to have instead a treaty. I should have thought that he would agree that to have a treaty between sovereign nations rather than a constitution is a fundamental difference, even though I agree that the Government's promise on a referendum certainly did not contain that caveat.

David Heathcoat-Amory: I judge treaties and constitutions by their substance and effect. It is now indisputable that the substance of the treaty of Lisbon is in almost all cases the same as that of the constitutional treaty. That was the conclusion of the European Scrutiny Committee and that of the Foreign Affairs Committee, in so far as it looked into the foreign policy implications of the treaty. That is good enough for me. It may be a coincidence that I serve on both of those Committees, but I did support their conclusions; both, of course, have Labour Chairmen and majorities. Therefore, it is beyond dispute that they are the same document in legal effect.
	It follows from that that the many amendments that the Government tabled to the constitutional treaty during the Convention on the Future of Europe also apply to the treaty of Lisbon. As most of their amendments failed, it also follows that many unamended parts of the treaty are not to the Government's liking, and also that any changes that the Government might seek to make to existing United Kingdom laws by using this part of the Bill are not to their liking either as they were the subject of failed British Government amendments. That is an additional reason for them to be closely scrutinised by the Committee on a case-by-case basis according to the affirmative procedure.
	My next theme is that this treaty is not a reform treaty, despite its earlier name. The Laeken declaration of December 2001 set in train a reform process. It recognised that decision making in the EU was remote, that the whole procedure had lost the confidence of the public, that the treaties were too complex and not democratic enough, and that the EU was interfering too minutely in the lives of ordinary citizens. Instead of following that reform instruction, the Convention on the Future of Europe consolidated more powers in the very institutions that were the cause of the disillusionment in the first place, and where reforming amendments were tabled, such as to the EU budget, they were ignored. It follows from that that the UK Bills to be amended in accordance with this clause will not reflect the reform process that the British Government supported. It is also worth noting that much of the UK legislation to be amended was passed some years ago when genuine reform of the EU was in prospect. Therefore, when the House passed provisions in those Bills referring to the European Union, it might have confidently expected that the relevant sections of the treaty concerned would be reformed, instead of which reform has been ignored and powers have been consolidated at the EU.
	My next theme is, therefore, the failure of subsidiarity. Not only has the reform process taken more powers upwards, but the subsidiarity principle is not working. That principle dictates that the EU can act only if the objective or policy cannot be achieved adequately at national level. That has been in treaty law since 1993, but it has not been an effective check on the EU's activities. Examples have been given in previous debates of how even the exchange of best practice at EU level has been thought sufficient to justify EU action. Nor has the European Court of Justice been an effective check on subsidiarity. How could it be, as it is itself an EU institution? It is part of the project, and under the treaty of Lisbon matters will get worse as it will be required by treaty law to practice "mutual sincere co-operation" with the other institutions of the EU. Therefore, the subsidiarity check for national Parliaments, which is supposedly a new feature of the treaty of Lisbon, is something of a sham.

David Heathcoat-Amory: My hon. Friend is right to say that if the treaty is ratified, subsidiarity will be overtaken by the new division of powers in the treaty. One of the reasons why the Lisbon treaty is a constitutional treaty is because it attempts a division of powers between member states and the EU institutions—that is inescapably a constitutional matter. Such a provision is found in the United States' constitution, which enumerates states' rights as against those of the federal Government. The Lisbon treaty attempts to do exactly the same, in a way that is almost entirely in the EU's favour. The definition of "exclusive competence"—that list is longer—will completely prevent any legislation by member states in areas where it applies. Even the definition of a "shared competence" will prevent member states from legislating if the EU moves into the area where it applies. It is a funny definition of sharing, which in practice will simply allow member states a residual competence. The arrangement will overwhelm any attempt to enforce the subsidiarity principle.

David Heathcoat-Amory: I can directly relate this matter to the amendment, Sir Michael, because the amendments permitted under subsections (4) and (5) will reflect the new division of powers and sharing of competences in the treaty. My hon. Friend the Member for Hertsmere (Mr. Clappison) was right; although the Laeken declaration suggested that some powers might be returned to member states, I can think of no example of where that has happened. Things have gone entirely in the opposite direction—the ratchet has operated upwards and never downwards—and it therefore follows that the amendments to "Acts or instruments" will reflect the new division of powers. We know that this House disapproves of that division; it was stated many times in debates leading up to the treaty that even the British Government were alarmed by the degree to which the powers and responsibilities were moving upwards and, in no sense, downwards.
	We must also consider the general transfer of powers from member states to the EU illustrated in the new policy areas such as energy provision. That is a new competence provided for in the treaty. Given that it will be decided by qualified majority voting, it too is a transfer of authority in the wrong direction. We must also take into account the advances into criminal justice and policing, and immigration and asylum, and the new areas to be decided by QMV. I believe the Government have admitted to 51 such areas, which is a record; the Single European Act extended QMV into 12 new areas, but 51 is by far the most extensive advance of QMV in any treaty.
	To give an example of where that can act against the interests of this House and this country, may I remind the Committee of the artist's resale right, which was granted in a directive some two years ago, against the British Government's wishes? It gives artists a percentage of the sale price of a work when it is resold, and has been a feature of French law since the 1920s. The British Government opposed it because they understood that it would drive business out of the United Kingdom to jurisdictions such as America where no such levy applies, and because the British art market, which is by far the biggest in Europe, stood to lose the most. Almost 50,000 people are employed in the British art market, and if it were eroded or business were to move to other art markets in the rest of the world, it would be a loss not just to Britain but to Europe. That was why the Government rightly opposed and voted against the directive. A recent study has shown that the fears raised at the time have been confirmed: the British art market has been damaged, and artists have not benefited. In any case, only the more successful artists stood to gain anything from the levy.
	That is an example of majority voting under existing treaties being detrimental to the interests of an important part of British business. The problem was seen by the House and the Government, but they could do nothing about it. The situation can only get worse under the treaty, because majority voting is to be extended to 51 new matters and will become the norm.
	Amendments that may be made under the powers in the clause will include provisions reflecting the new reality of majority voting as contained in the treaty. I shall give examples of changes that may be in Ministers' minds. A clue comes from the European Union Bill of 2005, which had a Second Reading and would have given effect to the constitutional treaty but was abandoned when the French and Dutch electorates voted against the constitution.
	Interestingly, that Bill contained a similar power to amend existing UK statutes and instruments to give effect to the constitution. In all major respects, the constitution was exactly the same as the treaty currently before the House, so the Bill's provisions are still relevant. It took a different approach from the present Bill: instead of giving Ministers a general power to make amendments to Acts or instruments, part 2 of schedule 2 to the Bill named specifically a great many statutes to which modifications and amendments would be required. Presumably—I hope that the Minister will confirm this—the Government still have it in mind to make the modifications listed. However, instead of setting them out in the schedule to the current Bill, they seek to give themselves a general amending power. That is a regressive move, which will further erode the House's ability to scrutinise the changes.
	The list of Acts to which the 2005 Bill stated that modifications were required is interesting, and backs up the observations that I have made about the existing treaties. For instance, the Civil Jurisdiction and Judgments Act 1982 is listed as requiring the deletion of a reference to article 68 of the existing treaty and the insertion of a reference to an article in the constitutional treaty. Exactly the same modification is presumably required, except that not an article in the constitutional treaty but an article in the treaty of Lisbon will be required.
	This is not simply a matter of terminology; it is a matter of substance. The reference to article 68 in the 1982 Act limits the jurisdiction of the European Court of Justice, whereas the replacement article in the existing treaty does things differently, as it has been substantially amended. We are not simply talking about a technical change; we are talking about a matter of substance, and I hope that the Minister can confirm that when he replies to the debate.
	Amendments to the Government of Wales Act 1998 involve the deletion of the word "regulations" and the substitution of the phrase "any order, rules, regulations or scheme". Again, that is not simply a matter of terminology; it is a matter of substance.
	I shall give another example. The Export Control Act 2002 was supposed to be modified. That is important because it gives the Government the power to control exports or the transfer of technology to other countries, possibly in line with the requirements of the common foreign and security policy. So the Act would need to be amended to reflect the treaty of Lisbon. But—this is the point—the common foreign and security policy provisions in the treaty of Lisbon are substantially different and far greater in scope and power than those under the existing treaties. Again, this is not simply a technical change of terminology.
	Another example is the Criminal Justice Act 2003. Again, the Act refers to articles 31 and 32 of the existing treaties, in which criminal justice is treated as an intergovernmental matter, whereas under the present treaty, as I have explained, it becomes a matter for the European Court of Justice and for qualified majority voting. In other words, that pillar of the existing European Union is collapsed and replaced by the normal Community method of decision making. So replacing those articles with the new articles in the existing treaty is not, again, a matter of terminology; it is a matter of substance.

Rob Marris: No, it is not; I agree with the right hon. Gentleman. I am referring to the clause heading on line 15 of page 1, which is "Changes of terminology". It should say "Changes of definition and terminology". I will return to that in a moment. Also, subsection (3), on lines 4 and 5 of page 2, says:
	"The Table in the Schedule to this Act sets out substitutions required to reflect terminology after the commencement of the Treaty of Lisbon."
	That should read something like, "The table in the schedule to this Act sets out substitutions required to reflect the consequences of the commencement of the treaty of Lisbon." That returns us to one of the points made by the right hon. Gentleman with which I agree, which is that "European Communities" does not mean the same as "European Union".
	Amendment No. 39 would amend clause 3(5), which sets out how the powers granted under subsection (4) will be exercised. Those powers are not, as the right hon. Member for Wells suggested, "changes of definition". Subsection (1) states:
	"In section 1(2) of the European Communities Act 1972 (interpretation) before the definition of 'the Communities' insert—".
	The key word is "definition", which is why I said that the clause's title should be "Changes of definition and terminology".

Rob Marris: I have certainly not become confused. I have already adverted to amendment No. 39 and what it does. If the hon. Member for Stone bears with me, he might see where I am going, so I urge patience.
	As I have said, subsection (1) uses the word "definition", whereas subsection (4) refers to
	"changes in terminology or numbering".
	The power granted under subsection (4) relates to changes in terminology or numbering; it does not relate to definitions. For the particular benefit of the hon. Member for Stone, that is why I have said three times that the title of clause 3 is not helpful—I used the adjective "maladroit"—and drawn attention to the use of the word "definition" in subsection (1).

Rob Marris: I will make some progress. I have urged patience on the hon. Gentleman, and I continue to do so.
	Subsection (4) uses the word "terminology". The right hon. Member for Wells seemed to believe that subsection (4) included the word "definition" rather than the word "terminology". If the word "definition" were used in subsection (4) instead of the word "terminology", I would support his amendment. However, if the word "definition" had been used instead of the word "terminology", the Government would not have drafted subsection (5), which the right hon. Member for Wells wants to amend, in its current form.

William Cash: This is a complex matter, and I am not trying to disparage the hon. Gentleman's remarks in any way. He is trying to draw a distinction between definitions and terminology; if he looks at the schedule, he will see tables with "Provision of the European Communities Act 1972" at the head of one column, "Existing expression" at the head of the next and "Substituted expression" at the head of the third. There are three pages of substituted expressions.
	To take one, crucial, example, the words "Enforceable Community right" are turned into "Enforceable EU right". That is a substantive change, made by the substitution of expression. It is not simply a matter of terminology as such; there is a substantive effect. If the existing expression had been left, it would not be possible to implement the merger of the existing treaties.

Rob Marris: I apologise to the hon. Gentleman; clearly, I have not yet made myself crystal clear to him or perhaps the Committee. On at least two occasions in this speech, I have agreed that, as patiently set out by the right hon. Member for Wells, it is a substantive change to say that "European Communities" does not mean the same as "European Union". Today in the House we are discussing primary legislation, including whether we should vote that the schedule, which makes substantive changes, as the hon. Member for Stone has pointed out, should be in the Bill or not. The schedule is a substantive change, and I say to the hon. Member for Stone and other Members that that is precisely why at the beginning I described the heading of clause 3 as misleading to the right hon. Member for Wells and others because of its maladroit wording—it should say "Changes of definition and terminology".
	Not only that, but I said that clause 3(3), which brings in the schedule, was badly worded because it contains the word "terminology", which should be left out. Perhaps the hon. Member for Stone missed that; I shall repeat what I said for his benefit. I said that clause 3(3) should read, "The Table in the Schedule to this Act sets out substitutions required to reflect the consequences of the commencement of the Treaty of Lisbon." That leaves out the misleading word "terminology", which should not have been included because it refers to the schedule, which is substantive because the "European Union" does not mean the same as "European Communities".

William Cash: I am glad that the hon. Gentleman ended on that note, because I have a feeling that although this discussion is about as turgid as it can get, it is important. The fact is that changing the expressions in that way has a different legal effect. Effectively, when we now refer to legal obligations there is a new kind of legal situation that is much more integrating than before and moves away, as my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) said, from intergovernmental to Union parameters. It therefore has—and this is, in a nutshell, why I am pursuing the issue—highly significant constitutional implications. My point is simple: the changes have constitutional implications, and because of their scale, they add up to another reason for holding a referendum.

Rob Marris: I agree that clause 3(3) has constitutional implications, but clause 3(4) does not. Subsection (4) uses the word "terminology" correctly, but subsection (3) does not. Subsection (4), which is absolutely germane to amendment No. 39, does not make a constitutional change—it says:
	"reflect changes in terminology or numbering".
	That is clearly an incidental provision, not a substantive change.

Rob Marris: I am grateful to the hon. Gentleman for offering to give way before I had even indicated that it might be convenient. What the hon. Gentleman is doing is reading into clause 3(4) the word "modify". I recognise that the noun "amendments" is also there, but as I said earlier, that is qualified by the second half of the provision, which states,
	"to reflect changes in terminology or numbering arising out of the Treaty of Lisbon".
	The hon. Gentleman talks about the surprise of members of the public, but I believe that they would be surprised if, when a provision needs renumbering, we have to have a debate on the Floor of the House to provide for it, which is what would happen if the amendment were passed.

William Cash: I am extremely glad that the hon. Gentleman has walked into a trap, which I had not intended to set for him, but which he has created for himself. I was not referring to modification by reference to the Bill, but to modification that is inherent in the manner in which statutory instruments are made under section 2 of the European Communities Act 1972, as I shall explain.
	Let me quote from Bradley and Ewing, one of the greatest constitutional authorities on this issue:
	"However undesirable this might appear in principle, Parliament frequently delegates to ministers power to amend Acts of Parliament."
	We need to bear in mind that the European Communities Act 1972 sets these provisions, which emerged from the application of sections 2 and 3 of the 1972 Act, in concrete through the acquis communautaire and also provides for the ultimate arbiter—the papal infallibility of the European Union, we might say—the European Court of Justice, which is effectively unchallengeable. On the face of it and subject only to my new clause 9, which I hope the House will vote on in a couple of days' time, this provision will not be capable of repeal.
	The great constitutional authorities say first that this might appear undesirable, but they go on to say:
	"The term 'Henry VIII clause' is given to such provisions and numerous examples may be found in the Scotland Act 1998"
	and often in other such constitutional measures—and we should note that it also applies to
	"the Government of Wales Act 1998".
	It continues:
	"When the power in a new Act is restricted to amending earlier Acts that are directly affected by the new reforms, the power is less objectionable than when it extends to amending the very Act that contains the power."
	That is what we are talking about here.
	The authorities go on to say:
	"Three instances of delegated power to modify Acts of Parliament may be given."
	The first—surprise, surprise—is the European Communities Act 1972, section 2(2)—the very provision that we are now discussing, because it is under that provision that the statutory instruments would be subject to annulment, which the amendment tabled by my right hon. Friend the Member for Wells seeks to change. My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) and I agree with him—we have also put our names to the amendment—that at the very least the affirmative procedure should be used. I shall point out in a minute—I am afraid that it will not be a minute, Sir Michael, but a little longer—a serious contradiction between the Bill and the 1972 Act, certainly in spirit if not in precise effect.
	Section 2(2) of the 1972 Act
	"authorises the making of Orders in Council and ministerial regulations to implement Community obligations of the United Kingdom"—
	under clause 3, that wording, "Community obligations", would be changed, through the schedule which the hon. Member for Wolverhampton, South-West and I were discussing earlier, to "EU obligations"—
	"to enable rights under the European treaties to be exercised and 'for the purpose of dealing with matters arising out of or related to any such obligation or rights'".
	Schedule 2 to the 1972 Act, on which the making of statutory instruments turns, throws up one or two interesting questions, because it
	"excludes certain matters from the general power, including the imposition of taxes, retroactive legislation and the sub-delegation of legislative power (other than power to make rules of procedure for any court or tribunal). Subject to these limitations, measures made under section 2(2)"—
	the instruments made in pursuance of European treaty obligations—
	"may make 'any such provision (of any such extent) as might be made by Act of Parliament'".
	What we are dealing with, Mrs. Heal—I welcome you to the Chair—is a provision within section 2 of the European Communities Act, to be exercised through statutory instrument, which in turn has the same effect as any Act of Parliament.
	My hon. Friend the Member for Rayleigh (Mr. Francois) might be interested to know why I am so concerned to ensure that we retain the supremacy of Parliament and the right to be able to redress things that can go wrong. It is to ensure that the courts do not apply the European legislation in such a way as to set it in concrete, and/or even, as in the case of Factortame and the Merchant Shipping Act 1988, to strike down Acts of Parliament. That might not be known to many people outside the House, because we tend to talk to one another. I hope that the BBC, under its charter, and others will ensure that people know that under the European Communities Act 1972, our ability to legislate is increasingly incapacitated.
	Under those kinds of provisions, to be exercised through statutory instrument—as I shall describe in a moment, mere annulment on the Floor of the House is virtually no defence whatever—legislation is being imposed on the voters of this country in a manner that would horrify them if they knew that it was going on. What would they think if they also knew that it could not be repealed, on the assertions of the European Court, but not on my assertions or those of the House, if it properly considers such matters? Through a notwithstanding formula—notwithstanding the 1972 Act—we could ensure that nothing in the Act, including the provision related to the statutory instruments that can modify Acts of Parliament, shall be construed by any court of law as affecting the legislative supremacy of the United Kingdom Parliament. That is an essential safeguard. This contribution on the effect of statutory instruments and the vast amount of power that they contain, under the arrangements, complements my speech on supremacy last Wednesday.
	The authorities continue:
	"The intention in using such wide language must have been to exclude the possibility of judicial review on grounds of vires in the case of instruments made under section 2(2)."
	Therefore, we are dealing not only with provisions that have the effect of being like Acts of Parliament, which cannot be amended because of the 1972 Act, but with judicial review being ruled out. That is pretty darn close, and is actually past the tipping point of an elected dictatorship—not even within the House, but going out into the European Union. In relation to thousands of statutory instruments, we are effectively being asked to hand over a power under section 2 that is virtually unchallengeable. In a moment, I shall deal with the minuscule, residual and meaningless opportunities for Members of the House to do anything about the instruments in question and their huge consequences. A power of annulment is a pathetic little block on the power that that provision gives to the European Union and Ministers.
	It is truly said that the provisions of Community law that do not have direct effect were addressed in two ways by the 1972 Act: first, by making amendments to existing legislation to bring it into line with Community law; and secondly, by introducing a general power to make subordinate legislation—the matter that we are discussing—to cover future as well as present Community instruments.
	According to the great commentators in their constitutional work,
	"Although there was concern about the new power to make subordinate legislation, the government did not expect the power to be frequently used".
	I believe that that refers to the Government of the late right hon. Edward Heath. I have to say that I have always had the gravest reservations about the way in which the 1972 Act was put through, and about the broken promises contained in it. As for the statement that
	"the government did not expect the power to be frequently used",
	perhaps they said that they hoped it would not be used. The authors of this great work then add
	"an expectation which was clearly unfulfilled."
	Under section 2(2) of the 1972 Act, regulations may be introduced by a designated Minister
	"for the purpose of implementing any Community obligation".
	Under the schedule, for "Community obligation" we must read "EU obligation", and for "EU obligation" we must read
	"The Union shall replace and succeed the European Community."
	That derives, in this context, from the unacceptable, deceitful mandate that was put through without reference—except on 20 June—to the European Scrutiny Committee, which is given the power and the right, on behalf of Members of Parliament, to report to the House about provisions that arise in relation to European legislation. The House has been conned by the German presidency and by the collusion of our own Government, who went along with it.
	We cross-examined the Minister for Europe—who is sitting here today—and the Foreign Secretary, and asked them about the timing. I will not go into all of it now, but the bottom line is that the European Scrutiny Committee—a Labour-dominated Committee, I might add—was so appalled by what had gone on that its members, including our excellent Chairman, went on record in two reports proving the deceitful manner in which the thing had been done, and also stating that this constitution was substantially equivalent to the original constitutional treaty.
	You will understand, Mrs. Heal, why I am linking the vast powers that the clause provides to the manner in which the whole process has been conducted. It is a thorough disgrace. It is completely outside the norms of parliamentary legislative processes. To my mind it is the equivalent of the dreadful provisions in the so-called Northern Rock Bill, but I need not go into that again today.
	According to the great authorities whom I have been quoting, the Government said that they
	"did not expect the power to be frequently used".
	For the benefit of those who wish to see what was said at the time, a reference is given:
	"HC Deb, 15 February 1972, col 282."
	As I observed earlier, the Government may have merely said that they did not expect that to happen, but any such expectation "was clearly unfulfilled".
	Section 2(2) of the 1972 Act, which enables powers to be introduced by a designated Minister for the purpose of implementing Community obligations, is subject to schedule 2, which provides that the regulations may not be used for the purposes that I mentioned earlier. As I said, one is retrospection and another is tax. A third is the creation of
	"any new criminal offence punishable with imprisonment for more than two years or punishable on summary conviction with imprisonment for more than three months or with a fine"
	amounting to more than level 5 on the standard scale. The power to make regulations under those provisions is exercisable by statutory instrument which—these words are important—
	"if made without a draft having been approved by resolution of each House of Parliament, shall be subject to annulment in pursuance of a resolution of either House."
	The amendments would specifically remove the right to make the resolution subject to annulment, in line with what was, apparently, originally intended. They are extremely important, because they propose that, at the very least, the order should be subject to approval rather than—as clause 3 proposes—subject to annulment. However, that is said without prejudice to my other point, which is that the process should not take place in a way that would enable, by statutory instrument, the variation and modification of matters that should be dealt with by Act of Parliament.
	These provisions are the European equivalent of a Henry VIII clause, which I should think would be a Charles V clause, a Frederick the Great clause or a Catherine the Great clause. This is another example of the change that is taking place in the way in which we legislate. It should be done, if at all—and I wish it were not done—by Act of Parliament, and not by any statutory arrangements of the kind that are being proposed. Fresh obligations under Community law continue to be implemented by both primary and secondary legislation, but, as I have said, it is not possible to amend those legislative arrangements, whether by primary legislation or by statutory instrument.
	The constitutional commentators say:
	"Although the power to make subordinate legislation has been widely construed, the government must indicate in clear terms what primary legislation is being repealed or amended when this procedure is invoked."
	.
	We are dealing with matters that have been given a great deal of judicial notice, but the reality remains that under section 3 of the 1972 Act it is incumbent on courts to give effect to what the European Court of Justice decides. It is necessary to complete the process to give effect to European law, hence my new clause 9, which would give us the right to reassert and put into effect the "notwithstanding" formula to override the 1972 Act where necessary.
	Lest anyone imagine that that has not been done before, I remind Members that two years ago, in May 2006, the Bill that became the Legislative and Regulatory Reform Act 2006 was debated in the House. It was all to do with burdens on business, a matter of huge importance given that Commissioner Verheugen has said that it is costing the European Union some £100 billion a year, or perhaps €100 billion a year—anyway, a vast amount. That is a European Commissioner saying that over-regulation has gone mad. I wrote a pamphlet called "The Strangulation of British Business" along the same lines. The statutory instruments made to give effect to this over-regulation are now based on the Legislative and Regulatory Reform Bill, in which there is an order-making power to give effect to, among other things, European regulatory reform legislation. They call it better regulation; I say it is much worse, because there is so much of it. The amount is secondary to the qualitative effect. The quantity is appalling, but the qualitative effect is vast, as Commissioner Verheugen has said. The provisions in the Bill that would be put through by annulment only must at the very minimum be made by way of affirmative resolution.
	I proposed a "notwithstanding" formula to bypass the order-making power of the type referred to in clause 3. That formula, in the interests of economic competitiveness, was endorsed. The Whips asked if I would be good enough to allow them to take over the amendments. I said, "By all means, feel free." Lord Waddington, my good friend, took it through the House of Lords six weeks later. We did not win the vote but the Conservative party, here and in the Lords, endorsed the procedure, which would stop this nonsense taking place.
	I now turn to the procedure that is to be followed. Irrespective of whether the matter is a European Community one or not, these are the parliamentary procedures prescribed for statutory instruments. I have here a helpful factsheet produced by the House of Commons Information Office. It is in good straightforward language and describes the nature of statutory instruments. It states that many laws in the UK pass through Parliament in the form of Bills.
	"Often, Acts only contain a broad framework and SIs are used to provide the necessary detail that would be considered too complex to include in the body of an Act.
	Secondary legislation can also be used to amend, update or enforce existing primary legislation Statutory instruments are just as much a part of the law of the land as an Act of parliament. The Courts can question whether a Minister, when issuing an SI, is using a power he has actually been given by the parent Act"—
	that is the ultra vires question; is it within or beyond the powers of the Act?—
	"but cannot question the validity of the Statutory Instrument for any other reason."
	I have just pointed out that it was clearly intended that the method to be employed under section 2 of the European Communities Act 1972, to which these instruments relate, was designed to avoid questions of ultra vires being challengeable in the courts. The factsheet indicates that the process is not meant to be carried out in a way that would result in challenge in the courts, but we know that there has been a serious attempt to try to avoid European statutory instruments being challenged in the courts for lack of vires.
	How do these statutory instruments get made? I was on the Joint Committee on Statutory Instruments for several years under the chairmanship of the late husband of the hon. Member for Keighley (Mrs. Cryer), Bob Cryer; a very good man and excellent cricketer, who captained the Yorkshire—

William Cash: All I can say—the transcript will demonstrate this—is that although I am making a fairly substantial, some would say long, speech, every single word I have expressed is directly related to the instrument-making power and to the impact of the extension of EC law to modifying Acts of Parliament by statutory instruments, which is under no circumstances acceptable.
	When I was on the Joint Committee, I suggested that against the title of every statutory instrument that came from the EU we should put a little "e" so that when people tried to judge whether or not the question of vires applied, they would know whether the instrument was related to a European Community obligation or not. I understand that once I left the Committee, that process was discontinued, which is a great shame. I hope it is to be brought back—someone suggested that there was talk of it—otherwise, one cannot track the extent to which European legislation has that overriding quality.
	In relating this matter to the proposal from my right hon. Friend the Member for Wells that this matter should be subject to affirmative resolution, an interesting question arises from the procedure of negative resolutions. A negative resolution is a procedure for annulment.

William Cash: It is like "The Devil Rides Out", but the devil is in the detail. Instruments subject to negative resolution procedure become law unless there is an objection from the House. The instruments are laid in draft and cannot be made if the draft is disapproved within 40 days. That is significant because it is not possible under the 1972 Act to disapprove a draft; one is not allowed to as a result of the implications of sections 2 and 3 of that Act.
	Clause 3(5) of the Bill states:
	"An order under subsection (4)—
	(a) may include incidental provision
	(b) shall be made by statutory instrument, and
	(c) shall be subject to annulment in pursuance of a resolution of either House of Parliament."
	That is nonsense. It is quite clear that such an order cannot be made if the draft is disapproved within 40 days. It is not, however, possible for the House to disapprove it because of sections 2 and 3 of the 1972 Act, so this provision in the Bill is a complete nonsense. I would like the Minister to address that point. It has taken me quite a long time to reach it, but it must be right because I am referring to a House of Commons factsheet. It states that statutory instruments that are subject to the negative procedure
	"cannot be made if the draft is disapproved within 40 days",
	but there is no power to do that under the 1972 Act—which, incidentally, is part and parcel of the entire operation of the Lisbon treaty. Therefore, as I have said, this provision is complete nonsense.
	It would be preferable for the instruments to be subject to affirmative procedure, because under those arrangements instruments cannot become law unless they are approved by both Houses. I say with due deference to my right hon. Friend the Member for Wells that although I agree that it is important for us to have something better than the negative procedure, the reality is that even if we have the affirmative procedure and do not use primary legislation, we will run straight into the problems of the acquis communautaire and the 1972 Act. Furthermore, even primary legislation can be overridden—which is why I tabled new clause 9 on the supremacy of Parliament. Therefore, we are in a fine old mess, and I do not think it is possible for people to appreciate quite how much power has drained away from this House.
	There is a body called the Joint Committee on Statutory Instruments; I have served on it. There is also a new Lords Committee on the Merits of Statutory Instruments. It was first appointed in December 2003, and it complements the work of the Joint Committee. The merits Committee's task is to consider the policy implications of statutory instruments and to decide whether a statutory instrument should be drawn to the House of Lords' attention on certain grounds, including
	"that it is politically or legally important or gives rise to issues of public policy likely to be of interest to the House"
	and
	"that it inappropriately implements EU legislation".
	Therefore, in relation to the provisions under clause 3, it can ask whether any instruments inappropriately implement EU legislation. I do not, however, believe that it will ever say that any instrument does do so inappropriately. I dispute the primacy of European law, as do many of my colleagues—more than 40 Members have signed my amendment on supremacy, and many others of all parties agree. The arrangements stipulated in relation to the primacy of European law—asserted by the European Court of Justice and weakly accepted by our Government and other Governments—even assert powers over our constitutional rights. They must be rebutted.
	I regret having had to explain this situation at some length, but it is important to understand that my speech has not been just a European filibuster or a Eurosceptic rant. It is about the way we legislate under the procedures prescribed in clause 3, the inadequacy of the control that we have over them, and the inability to be able to deal with European legislation in many instances because of sections 2 and 3 of the 1972 Act. It is therefore necessary for us to reassert in practical terms—not just as a matter of general principles or abstractions, or in theological dissertations—how we can ensure that where negotiations have failed, we legislate on behalf of the voters of this country, so as, in relation to burdens on business for example, to guarantee economic competitiveness in the manner suggested by the current leader of the Conservative party.

Mark Francois: Amendment No. 39, which was ably introduced by my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory), would allow for all orders made under clause 3 to be subject to the affirmative resolution procedure rather than the negative resolution procedure, as the Government wish. It would thus improve the Bill by compelling the Government to lay all orders made under subsection (4) before Parliament and by instructing that such orders should all be positively approved by resolutions of both Houses. The amendment would thus improve parliamentary oversight of the implementation of the treaty's details into UK law without, for better or worse, wrecking the Bill in the process.
	I hope that hon. Members from all parties, including the Liberal Democrats, who have expressed the wish to strengthen Parliament when outside this place, will join us in supporting the amendment. I understand that the hon. Member for East Dunbartonshire (Jo Swinson) said she would so as much—

Mark Francois: I apologise to the hon. Lady; I had to nip out of the Chamber for a few minutes, so I missed her contribution. I am grateful for her commitment that the Liberal Democrats would vote with us on the amendment, and we look forward to that being honoured when the Bell rings.
	The hon. Member for Stone (Mr. Cash) also touched on the amendment briefly—for three quarters of an hour.

Jim Murphy: I made it 46, but perhaps it was nearer 50. The hon. Gentleman said that he had been accused of a Eurosceptic rant or filibuster, but I hope that he accepts that at no point have I suggested anything of the sort. While listening to his reflections on the cricketing skills of the late Mr. Cryer, who was a Labour Member, I appreciated why the House had previously taken a view in principle on the timetabling of certain Government business. We were denied the opportunity to hear even more on the apparently great cricketing skills of my friend Mr. Cryer.
	I shall respond to the specific, wide-ranging points that hon. Members made. I do not wish to go into detail on all of them, and the Committee would not thank me for doing so, because we have other amendments to reflect upon. A number of right hon. and hon. Members asked me about legal personality. We have been round the houses about it previously and are well versed in the arguments: having a legal personality is not new for the European Community or the European Union. The EC has had a legal personality since the treaty of Rome in 1957, and the EU has a functional legal personality that has enabled it to conclude 100 or so agreements in its name over the years.
	Several right hon. and hon. Members mentioned competence. The Law Society guide to the treaty which was published earlier this year, states:
	"There are five areas in which the UK and other EU countries have agreed that the EU alone may pass new laws. None of these is new to the Treaty of Lisbon."
	I have made the point before that the Law Society is not some foreign construct aimed at undermining the established will of the United Kingdom; it has offered a considered opinion on EU competence.
	Qualified majority voting was mentioned by the hon. Member for Hertsmere (Mr. Clappison), the right hon. Member for Suffolk, Coastal (Mr. Gummer) and others. In principle, the Government are in favour of its extension. I disagree with the right hon. Gentleman about some of his points about the handling of the Bill, but I understand why he made them. However, he was correct about the important dynamic that qualified majority voting creates for the United Kingdom in its negotiations with the EU. As the Committee is aware, the proposed move from qualified majority voting to double majority voting will increase the UK's share of the vote by 50 per cent. The change will improve the position of the UK and strengthen our bargaining position, as was pointed out by the author of a report by the London School of Economics.

Sylvia Heal: Order. I reminded the hon. Gentleman during his own contribution that the debate on qualified majority voting is tomorrow. I know that the Minister has made some reference to it. I hope that he will make a brief comment at most, and then we can move on.

Jim Murphy: Of course, as usual, I will abide by your strictures, Mrs. Heal, and we may, of course, have the opportunity to debate that in tomorrow's proceedings.
	Amendment No. 39, which stands in the name of the right hon. Member for Wells and is supported by the hon. Members for Stone and for Rayleigh, among others, is intended to make it more difficult for the Government to make changes to terminology or numbering in other UK laws that result from the Lisbon treaty. The Bill contains a power for the Government to update terminology and numbering in existing legislation. That is a power to make purely technical changes. For example, the article numbers in the treaties will change on the entry into force of the Lisbon treaty and the co-decision procedure is renamed as the ordinary legislative procedure. Those are not changes in substance, but UK law may need to be updated to reflect such changes in terminology.
	Again, I disagree with the conclusions reached by the hon. Member for Stone, but the Committee would generally agree that he made a thoughtful contribution. I hope that he will not mind my saying that his assertion was a criticism of section 2(2) of the European Communities Act 1972. It is commonly acknowledged that subsections (2)(a) and (2)(b) contain relatively wide-ranging powers.

Jim Murphy: Of course, I will happily do so. My hon. Friend has paid assiduous attention to every twist and turn of the Bill almost every day, and the Committee deserves to give him the credit that he is fully entitled to. I listened with great care to the points that he made, and my view is that it would be unnecessary to make the changes that he suggests. Clause 3 will amend section 1(2) of the 1972 Act, which, of course, as the Committee will be aware, lists the definitions contained in that Act. Amendment of the 1972 Act is required only to reflect changes of terminology, which is what clause 3 is all about.
	Let me make some progress on the argument. The Government need to ensure that all existing references to the European Community are updated and that other technical changes are made—for instance, reference to the numbers of treaty articles or the names of instruments and procedures. We need to be sure that that is done thoroughly, to ensure legal certainty.
	There is no point in progressing along the lines suggested by the right hon. Member for Wells in respect of the affirmative procedure. The Government have referred in the Bill to both the House of Commons and the House of Lords. Subsection (5)(c) states:
	"subject to annulment in pursuance of a resolution of either House of Parliament."
	That is the better way to progress. Under amendment No. 39, we would have to return to the House for each and every minor change of terminology, on the many hundreds of occasions that that may be necessary. The Bill will avoid that exercise, and it is clearly provided that any order will be subject to annulment in pursuance of a resolution. If the treaty is ratified and we do not update the terminology in our legislation, confusion and uncertainty could arise.
	Finally, the powers are very closely defined in clause 3(4), and those narrow powers are reflected in the schedule. With those words, I hope that I have persuaded the Committee to oppose amendment No. 39.

David Heathcoat-Amory: I am grateful for the support for my amendment expressed in several quarters, particularly by my hon. Friends the Members for Stone (Mr. Cash) and for Hertsmere (Mr. Clappison) and, slightly unexpectedly, by the Liberal Democrats, who support my amendment, although, as usual, for the wrong reasons. I must also mention the contribution of my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer). Although we disagree about the substance of the treaty, his contribution to the debate certainly helped to analyse the issue, and his point was a good one: this is one of the very few occasions in these debates when we have been able to devote sufficient attention to one aspect of the Bill. The line-by-line scrutiny that we were promised has been comprehensively forgotten and that promise broken, but today at least we have been able to ventilate these issues at some length.
	The key point in my amendment is simply that clause 3(4) and (5) will give a power to the Secretary of State or the Treasury to make amendments to existing United Kingdom laws and statutory instruments, and some of those laws have been on the statute book for many years. That is supposedly to reflect changes in terminology, but it is quite clear from the way the clause has been drafted that it is not limiting. It does not strictly confine such amendments to the making of technical name changes, as suggested by the Minister. If such changes were strictly confined to making differences of name or number, that would have been stated in the Bill. However, those amendments simply have to reflect changes in terminology.
	At the start of the debate, I gave examples of where apparent changes in terminology in fact make substantive changes. The change from EC to EU is not simply a technical change, because the EU will include not simply all those matters in the existing EC treaty, but all the intergovernmental matters in foreign and security policy and in justice and home affairs. I gave some other examples, to which the Minister has completely failed to respond. I instanced specific statutory modifications that we know the Government want to make because they are listed in the previous Bill, which was introduced in 2005 to give effect to the constitutional treaty. Those modifications include amendments to the Export Control Act 2002 that will bring into British law provisions and obligations in the common foreign policy that prevent people from exporting goods and making technology transfers. The modifications also include alterations to the Criminal Justice Act 2003 that completely change it by including reference not to the intergovernmental method of deciding criminal justice matters, but to the new measures in the treaty of Lisbon, which collapse the intergovernmental pillar and make criminal justice matters subject to the European Court of Justice and normal decision making through majority voting.
	The Minister owed us an explanation and a response to the detailed questions that I asked him about the amendments to British and UK law that we know the Government want to make—amendments that are not simply technical, but involve matters of substance. In view of the Minister's poor response, I shall press my amendment to a Division.
	 Question accordingly negatived.

Sylvia Heal: With this it will be convenient to discuss the following amendments:
	No. 56, page 2, line 14, leave out 'or instrument made under an Act'.
	No. 57, page 2, line 15, leave out 'or instrument'.

William Cash: Amendment No. 55 concerns the way in which Acts of Parliament or statutory instruments made under Acts of Parliament will be treated as referring to the European Union rather than to the Community, which is a similar issue to that covered in the previous debate. I do not intend to speak for more than a short time, because I raised most of the issues that I want to address in the previous debate. Furthermore, I encapsulated the fundamental question about the merger of the treaties in the speech that I made about an hour ago.
	Clause 3(6) does not specifically refer to "Changes of terminology". It states:
	"In an Act or instrument made under an Act",
	which is very wide. It refers to all Acts, including the European Communities Act 1972, so it is not confined to any one Act.
	Subsection (6) also states:
	"a reference to all or any of the Communities",
	which relates to my point about the merger of the existing treaties. I objected to, remain concerned about and would oppose again, if I had the opportunity to do so, the intergovernmental arrangements under the Maastricht treaty, because they provide for European government rather than European trade. Irrespective of the question whether there is intergovernmentalism, the collapse of the pillars and the fact that the existing treaties will be merged into a Union and will overtake the Community, my fundamental objection to the way in which the whole of the European Union is being relentlessly integrated is that the arrangements involve European government rather than European trade. I am in favour of an association of nation states—as a matter of fact, I would prefer to return to the European Free Trade Association.
	Subsection (6) states:
	"In an Act or instrument made under an Act a reference to all or any of the Communities shall, in the application of the enactment or instrument after the passing of this Act, be treated as being or including (as the context requires) a reference to the EU."
	That is a deeming arrangement, and it is effectively a retrospective arrangement. For both those reasons, I take exception to it, which is why I want it left out. It does include the European Communities Act 1972. As people pay more attention to the issue in future, as and when it arises, they will find that unexpected things will be done under the arrangements which will have consequences that people do not at present anticipate. My objection is that the provision is not only about terminology—it has certain substantial consequences. The issue links back to the merger of the treaties, to which I object, and relates to a deeming or retrospective provision, to which I take exception.

William Cash: I do not wholly disagree with the hon. Gentleman, but the issue is different in respect of the arrangements under the earlier subsections. In discussing those, we were dealing exclusively with terminology; now, we are dealing with the deeming of an Act. The idea is that there is a retrospective deeming of the wording and that that involves more than terminology because it has constitutional implications. However, frankly, although it is objectionable, I do not think that the issue is of the same order of concern as the previous proposals relating to whether there should be an affirmative or negative procedure and the whole question of the modification of Acts of Parliament through statutory instruments. That is as much as I need to say on the provision; I shall sit down.

Mark Francois: Amendment No. 55 seeks to delete subsection (6) from clause 3. As we have seen from our discussion of amendment No. 39, clause 3 gives legal force in domestic United Kingdom law to the Lisbon treaty's collapse of the separate European Community pillars, which include among other things the single market and the common agricultural policy, into the European Union's new unitary legal identity, which will also incorporate the currently legally distinct common foreign and security policy and co-operation in police and criminal justice matters.
	On the international level, terminological changes flowing from and supporting that fundamental change are made to existing European Community CFSP and police and criminal justice Acts brought in under the current treaties by article 5(3) of the Lisbon treaty. The laws will continue to have force until they are amended or repealed under the new treaty provisions. Article 5(3) of the Lisbon treaty provides that all existing references in those laws to the titles, sections and numbering of the treaties will be automatically understood to refer to the titles, sections and numbering of the treaties as amended by the Lisbon treaty.
	Clause 3 seeks to amend UK legislation to keep it in line with those changes at EU level. To that end, subsection (6) seeks to provide for a blanket change in how terminology in existing UK law will thereafter be understood. Specifically, it says that any instance of "European Communities" shall be treated as a reference to the "European Union".
	As we have seen, those changes can have wide-ranging importance due to the fact that the new EU will be far wider than the existing European Community. In particular, the change in the meaning of all UK law currently referring to the European Communities could, depending on the UK laws in question, give domestic legal effect to common foreign and security policy provisions, despite the fact that the Bill excludes the CFSP from the definition given to the EU treaties in the 1972 Act. That is because the term "EU" alone is not restricted to the 1972 Act's definition of the EU treaties—as provided in clause 3(1) of the Bill, it includes everything under the EU exactly as it is provided for in the treaty on European Union at international level. That means the common foreign and security policy as well.
	Our key objection to subsection (6) is that it is such a blanket provision, the true consequences of which we cannot know without examining every individual change that it would make to each of the affected EU laws. For that reason, the subsection is not only potentially somewhat dangerous, but unnecessary because, as we saw during our debate on the previous group of amendments, clause 3(4) and (5) already give the Government the power to make orders to vary the terminology of any references in UK law that have not already been provided in the schedule to the Bill.
	We have already stated that we believe that orders made under subsections (4) and (5) should be made only by the affirmative procedure so that we can better scrutinise the effect that each would have. I am disappointed that the House did not see fit to agree to that amendment, but the argument was nevertheless put and debated. Clause 3(6) is also a potential problem, as changes made under that provision are not even subject to the negative procedure.
	Under clause 3, the changes in each instance are automatic and outside the scope of parliamentary scrutiny and are therefore unwelcome. Amendment No. 55 will improve the Bill without wrecking it, by allowing for all terminological changes in UK legislation following the Lisbon treaty, were it to be ratified, to be brought before Parliament for scrutiny, to ensure that the changes were really only terminological and were otherwise acceptable to the legislature.

Jim Murphy: I am delighted, and modestly surprised, to be responding to this debate so early in our proceedings, but glad that I have prepared a couple of hours in response.
	I am not sure whether the amendments tabled by the hon. Member for Stone (Mr. Cash) were intended to wreck the Bill, as he suggests—I think that he is being unfair on his amendments—but I acknowledge his avowed intention to wreck the Bill, and therefore the treaty.
	Let me turn to the specific points that the hon. Member for Stone raised in respect of amendment No. 55; he mentioned amendments Nos. 56 and 57 only in passing, although the hon. Member for Rayleigh (Mr. Francois) eloquently and pre-emptively amplified the unspoken sentiment behind them. The amendments attack the reality of the situation—that the Lisbon treaty replaces the Community with the Union. If the UK, with Parliament's approval, ratified the treaty, it would be senseless to seek to deny that reality.
	As we heard in the previous debate, clause 3 deals with the changes in terminology and numbering resulting from the Lisbon treaty.

Stewart Hosie: The Minister is talking about changes to terminology and numbering. However, the argument in favour of the amendments on subsection (6) appeared to be that if we rename the Communities as the Union, that will somehow give authority or precedence to the EU, particularly in relation to the common foreign and security policy. That would make it constitutional and would therefore raise certain issues. What is the Minister's view on this matter, and does he believe that this change would, even on a single occasion, give precedence to EU law on common foreign and security policy matters?

Sylvia Heal: Order. I appreciate the hon. Gentleman's comments, but they are rather lengthy for an intervention. He will have an opportunity shortly to wind up the debate and explain his point further.

William Cash: If the Minister thinks that this is such a bad amendment, I think that he will recall what I said in the previous debate about the impact on the secondary legislation that he mentioned. Those statutory instruments can modify Acts of Parliament, exclude judicial review and address a whole range of other matters, including constitutional issues. If I were the Minister, I would be a bit careful about asserting that the use of the word "instrument" in this case is as unimportant as he is making it out to be, because it contains within it a Henry VIII clause-type arrangement.

Mark Francois: I wish to argue to the contrary: that clause 3 should not stand part of the Bill. Our discussions on amendments Nos. 39, 55, 56 and 57 have shown that the clause tries to include in UK domestic law the changes in terminology that effect the virtual collapse of the EU's existing pillar system. As we all know, the EU is currently only an umbrella term for three distinct areas of activity, usually called "pillars". The three pillars are: the European Communities, the main part of which is the European Community, which includes the single market and the common agricultural policy; the common foreign and security policy, and police, justice and home affairs.
	Under the treaty, the existing pillars will be virtually abolished. The European Community has merged with the European Union into a single unitary legal personality, incorporating all activity undertaken under the EU treaties, although Euratom would admittedly remain separate, as was pointed out earlier. Police and criminal justice matters are also subsumed into the same institutional provisions and decision-making processes that applied in what was the European Community.
	The common foreign and security policy, although remaining subject to distinct procedures, as was largely the case under the original EU constitution, is also brought under the same single EU legal personality. All this will have important effects on the respective rights of the member states and the EU to conclude agreements with third countries and will of course interact with the new provision on implied competence in the article on exclusive competence. The changes in terminology set out in the clause reflect those profound changes and give them legal force in domestic United Kingdom legislation. Among other things, the clause changes, almost automatically as it were, all references in UK law to any or all of the "European Communities" to the "European Union".
	As we heard in our discussion on amendment No. 39, changes in terminology might sound dull to the external observer, but they matter—in fact, they matter quite a lot. My right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) pointed to examples of where changes in the references to the EU treaties made by United Kingdom laws could lead to substantive alterations in the effect of UK laws. He detailed, at some length, a number of examples that I do not intend to reprise again, but they will all be in  Hansard. I reiterate that there is a particular concern where a current domestic law gives effect in the UK only to European Community obligations, but where, following a change in the terminology to "European Union", it gives domestic effect to additional provisions, too.
	As my right hon. Friend also highlighted, the Government seemed to be far more forthcoming about the sorts of changes that they were seeking in their Bill to ratify the original EU constitution, allowing at least some parliamentary scrutiny of those changes as part of the passage of that Bill. That leaves a burning question. Why have the Government been so coy about what the supposed terminological changes will entail in this Bill? Might the reason be that they are trying to hide the fact that some of the changes to UK law resulting from the Lisbon treaty are in fact important, seeking, in effect, to park them behind the old façade of a "tidying-up exercise", which they have sought to use all the way through, to disguise the important transfers of power being made from this House to the European Union?

Edward Davey: Well—[Hon. Members: "Ah!"] Whether they abstained because they were not here or because they deliberately did not like it— [ Interruption. ] I have to say to the hon. Gentleman that I noticed quite a lot of his colleagues voting for the treaty, which was completely against his Front-Bench position, so he ought to be very careful when talking about which way different parties' MPs voted on Second Reading.
	There is a danger that I am going to be diverted from the issue. I just want to finish my point on justice and home affairs and the way that that relates to clause 3. I want to quote Michael Dougan, an academic at Liverpool university, who has talked about how the justice and home affairs issues will be changed under the Lisbon treaty. He has said:
	"The combined effect of those provisions would be that the UK participates in the Area of Freedom, Security and Justice to a lesser degree under the Lisbon Treaty than it does under the existing treaties."
	Observations such as those give the lie to some of the concerns that people, particularly those on the Conservative Benches, have raised. It is simply not the case that we would be giving away all the UK's powers in justice and home affairs; quite the contrary.

Peter Lilley: There are three reasons why the clause should not be allowed to stand part of the Bill. The first relates to the importance of the clause. My right hon. and hon. Friends have demonstrated that it will have a more substantive impact than first meets the eye. In many respects, the impact may be indirect, but Conservative Members have spelled out at length why the consequences will be quite substantial.
	I accept, however, that the clause is manifestly less important than many of the clauses that relate to issues that that the House has not debated at all. We spent a whole day debating carbon trading, but only six words of the existing European Union treaties were being changed. Now we have just a part of today to debate this particular clause, which has a multiple of that number of words and probably far greater ramifications. The clause is also manifestly less important than all the treaty provisions relating to immigration, border controls and asylum, which we have not debated at all.
	We should not let this clause stand part unless and until we have debated at length, properly and fully those other issues, under other clauses, which have so far passed undebated, and which the Minister intends shall not be debated at all. Precisely because this issue is less important than others, we should not let it get on to the statute book until those more important issues are debated, or we are given a promise that they will be debated.
	Secondly, the clause should not stand part because of its opacity. At the very least, it is difficult to understand what it is about and what its impact will be. That is not just because it is necessarily difficult and complex, but because it and the whole structure of the treaty and the Bill are deliberately opaque. Our European partners decided to make the treaty opaque because it had to look different from the constitution, which had been rejected by the electors in France and Holland. Therefore, they deliberately opted for a procedure that would make it difficult for ordinary people, on immediate perusal of such clauses, to understand what is going on. That made it possible for them to say that the treaty is different from the constitution.
	Under the law of this country and other countries in Europe, there were two possible routes to implement the constitution. The first was to say, "Let us sweep away the existing treaties and replace them with the constitution, incorporating all the powers of the existing treaties plus several others." That was the original approach adopted—clear-cut and obvious. It was so obvious to the people of France and Holland that they decided that they did not want it, and rejected it.
	The Government then went along with their partners, who said, in terms, "Let us achieve the same result through an opaque approach. Instead of saying that we will replace the existing laws with the constitution, let us change the existing treaties clause by clause, bit by bit and word by word until we arrive at a form of words that is exactly equivalent to the constitution." The Government have adopted that route. That is the reason for clause 3, and the pages and pages of changes that it will enact, through its annexes or appendixes.

Michael Penning: If hon. Members want to make speeches in this House, Sir Michael, they can catch your eye rather than making silly party-political points.

Iain Duncan Smith: I had not intended to speak to this clause, but I shall do so as I was unable to speak in the earlier debates.
	Today is the first time that I have felt that the Chamber has done its job. It has interrogated the Minister—an old footballing friend whom I congratulate on his courtesy—and we have been able to get to the nub of the issue. I listened to two excellent speeches; one from my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) and the other from my hon. Friend the Member for Stone (Mr. Cash), who made two telling points on fine detail, which is critical.
	I agree with my right hon. Friend the Member for Hitchin and Harpenden (Mr. Lilley) that the clause is not necessarily the most important element in the Bill. None the less, we must oppose it for two reasons. First, I agree with my right hon. Friend that previously we have not had the opportunity to undertake the level of scrutiny that was promised to us. I was stupid enough to believe the Prime Minister when he said that we would have line-by-line scrutiny. I did not realise that he meant "line-by-line" to mean two lines, rather than every single line of the Bill. I now know what he meant: we would discuss the title and the end of the Bill, and that would be good enough. I never agreed with the nonsense of the Second Reading debate at the beginning of every day and I refused to speak in them because they have ripped the heart out of what the House is about. I came to speak to amendments on defence to which I had attached my name but I was unable to do so.
	One of the important reasons why we should oppose this and every clause is that none of them so far has had enough debate and scrutiny to allow us to give the right attention to detail. Detail is what we do in this place. I have heard it called petty or trivial detail; the truth is that the House is about detail, and the grandstanding speeches that have been made are less important and less relevant to how the treaty will affect our legislation.
	The second point was that the clause gives form to a substantial element of change in the treaty; the partial collapse of the pillars, as the Liberal Democrats put it. It seems to me that when a house collapses, it collapses; it can partially collapse or fully collapse, but try living in it afterwards. In this so-called partial collapse, we have collapsed a huge undertaking made at the time of the Maastricht debates. I never believed the Government on the EU anyway, whether Conservative or Labour. I stand by that even today. I think that I was right about this matter. Undertakings were made at the time about what would happen to us subsequently: we were given undertakings that because of the new pillar construct, we would be protected thereafter from any further incursions—the tide had been stemmed and all would be reversed. That cannot honestly be said to be what has happened. Those pillars were pillars not just of the whole process of the EU, but of an argument that said, "We have reached the high point and thereafter all will be changed." We should therefore oppose the clause because it breaks a previous Government's commitment on the EU treaties. The change from the European Community to the European Union is not a minor one; to be fair, Labour Members have not pretended that it was. It is not just a terminological change, but a major change to how everything flows and the legal context.
	We should also oppose the clause as it is based on the idea that all that flows from it will come from a kindly Government who will only ever do the right things and make the right changes. I and hon. Friends tabled an amendment to strike out clause 3(6) for that very reason—because the extent of this is almost limitless. Of course the Government will say to us, as all Governments have always said to us, "You can trust us as we have the best interests of the British nation at heart." I am sure that all Governments believe that. I do not think for one moment that the Minister would try to sell the country down the river; he believes that what he is doing is right and that the Government would resist any change. The problem is that there is a natural dimension to this: this whole process of change from within the European Community—now the European Union—has a dimension that overcomes Government resistance. In due course, more and more will change and flow from this, and Governments will go along with it. In fact, we get so casual with secondary legislation that it flows through this place like a river in spate. There is so little that we ever do about it. We nod through measures that we should never nod through. Admittedly, there are good Select Committees that try to pinpoint things that go wrong. The hon. Member for Linlithgow and East Falkirk (Michael Connarty), the Chairman of one such Committee, is present, and I congratulate him. They are, however, like the little boy with his finger in the dyke. The truth is that we will be overcome—in fact, we are overcome. More and more power is taken away from Members of this House and put into the hands of the Government, and exercised in due course on behalf of the EU. Therefore, I do not trust Governments either of my own persuasion or of the other political persuasion when they say, "Trust me."
	This House should never trust Governments. That is what we are here for. Why do we sit on these Benches if all we want to do is give way to the Government? We should never trust them for one simple reason. Our history over hundreds of years is bound up in this clause, because it is about us not trusting them; it is about us fighting to take back powers, not about giving them to another body to be exercised via the Government. That is why I feel strongly about the clause, and why we should resist it. It is alien to the entire way we believe we should operate. We were elected here not to trust, but to spell out. Our trust should be placed in the words in front of us, not in what a Government say might be their meaning in 10 years. If we do not believe what their meaning is said to be, but instead believe that they would allow a Government to extend things beyond and far into the future, we should say no. Even if that does not happen, we should say no because that is a power we have no right to give them.

Michael Connarty: I am pleased to follow the right hon. Member for Chingford and Woodford Green (Mr. Duncan Smith) even though I think he accused me—or Select Committees in general, perhaps—of giving the finger to the Government. I deny the charge, even though I do not deny the temptation.
	I recall that the right hon. Gentleman received an award at the end of last year, and that I received one on the same day. I said something then that, funnily enough, he has stolen; I said that I was not a Eurosceptic, but a Government sceptic. That is a healthy thing to be on the Government Benches as well as on the Opposition Benches.
	The problem with a lot of these debates is that people make arguments for parliamentary democracy at the highest level—the right hon. Gentleman made a good speech about that—while also saying that we should abandon it and let people have a referendum run by the tabloid press and certain prejudiced people who have such power in this land because of their ownership of multimedia. Such people would distort anything and take things away from parliamentary democracy, which is why I am pleased that we have had so many days of debate on the treaty.
	Hon. Members keep coming back to simplified speeches that they can doubtless make to their constituents, but I ask them to read the consolidated treaty, a copy of which I have here. It shows how the treaty on the functioning of the European Union will work. If they did that, they would not be opposed to allowing clause 3 to stand part of the Bill.
	I commend the right hon. Member for Wells (Mr. Heathcoat-Amory) for his thoughtful amendment. I also commend some of the speeches made about it. We heard discussions about how the Government should bring to the Floor of the House a procedure that would give confidence that Parliament would be engaged in deciding not only whether the right terminology is being used—for example, ensuring that "EC" becomes "EU"—but whether a power should be given away by an opt-in or a decision to opt out. I have put that matter again and again to my Front Bench team from these Benches and in my Committee's report, and the point has been echoed by contributions by members of the Public Administration Committee. I hope that before the Government finish this procedure they will lay before us clear regulations that we can approve.
	Let us consider the origin of much of clause 3. Paragraph 42 of the European Scrutiny Committee's 35th report of Session 2006-07 states:
	"The White Paper...refers to...'simplified treaty revision'".
	It also mentioned a simplified revision procedure, which should be the substance of our concern. We detailed how the original
	"articles IV-444 and 445 of the Constitutional Treaty"
	provided for that "simplified revision procedure". We called it a constitutional treaty, but it was the treaty for a constitution.
	The Committee went on to say:
	"The simplified revision procedure would allow a change from unanimity to QMV (except in relation to decisions with military implications or in the area of defence)."
	I must point that out to hon. Members who were worried about defence. Neither the treaty for a constitution nor this treaty intended to hand over defence to anything other than a unanimity procedure; there was no intention to go to QMV, and that position remains firm.
	I found it strange that the hon. Member for North Essex (Mr. Jenkin) spoke about defence, because I had expected him to discuss institutions. The Chair was open to letting him speak. He argued, incorrectly—I tried to intervene on him, but he would not let me—that defence was going to be compromised by this treaty.

Michael Connarty: It is very interesting that the hon. Gentleman picked that example; we have looked at in great detail, but I am sure that he and all other hon. Members will agree that it has nothing at all to do with the treaty. That agreement already exists under the current treaties: the European Defence Agency is up and running, and we regularly receive reports from it. My understanding—I think that this was what I would have said in the intervention on the hon. Gentleman—is that only where a group of countries decide to act together and one member wishes to leave that arrangement because it finds it too burdensome can the agency decide by qualified majority voting to let that country leave. It is not a matter of expelling someone. I am very clear about this fact; we have studied it in some detail. When a country wishes to leave, it can be given permission to leave by qualified majority voting. That is an arrangement not for all 27 countries, but only for those countries that have already agreed to act together on specific defence-related policies.

James Clappison: Has the hon. Gentleman seen the report of the Foreign Affairs Committee in which it found that the treaty contains five significant changes in defence, including permanent structured co-operation, to which my hon. Friend the Member for North Essex (Mr. Jenkin) has just referred. The Select Committee found that there was a change.

Bernard Jenkin: That is exactly right. I remember debating those matters with my right hon. Friend many years ago when the House debated the treaty on European Union, as it then was. The point is that it is impossible to foretell what matters will come before the Court. It is impossible to forecast what issues and disputes will arise on a subject as massively complex and broad as the treaties. We now rely entirely on short exclusions that are written into the treaties. Let me elaborate on that point. The hon. Member for Linlithgow and East Falkirk, the Chairman of the European Scrutiny Committee, exhorted us to read the treaties, so let me say that the exclusion concerned is in article 275 of the consolidated texts. I must say that I find the business of using the treaty of Lisbon numbering very confusing, because when people read this debate once the treaty is in force, if they open the consolidated texts they will not be able to marry up the debate that took place in the House with the treaty that is in force. Forgive me if on this occasion I use the numbering as it would be if the treaty were ratified.

Bernard Jenkin: Yes, I hear my right hon. Friend saying that the treaty is near to being the constitution. It is worth pointing out that the abolition of the term "European Community", and its replacement with "European Union" throughout the treaties, was the main innovation in the constitution. That underlines one of the European Scrutiny Committee's fundamental conclusions, which is that we are talking about a distinction that amounts to no substantive difference.
	Article 275 says:
	"The Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions."
	The problem is that the treaty does not define "common foreign and security policy". The only definition is included in the provisions on foreign and security policy.
	The treaty continues:
	"However, the Court shall have jurisdiction to monitor compliance with Article 40 of the Treaty on European Union and to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 of this Treaty."
	If hon. Members have become confused it is understandable, because the matter is complex. Article 40 of the treaty on European Union—the European Scrutiny Committee Chairman told us to read the treaty, and I am enjoying reading it—states:
	"The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union."
	Notwithstanding the exclusion of the European Court of Justice from common foreign and security policy, anything that is included in the treaty on the function of the European Union that overlaps with common foreign and security policy is included in the jurisdiction of the Court. That includes matters such as trade, aid and, as my right hon. Friend the Member for Chingford and Woodford Green (Mr. Duncan Smith) has said from a sedentary position, competition.
	Article 270 on the European Court of Justice refers to the terms and conditions of employees of the European Union, and the boundaries will get blurred. Members of the External Action Service of the European Union will presumably be employees of the European Union, so that aspect of foreign policy will inevitably be tangled up with the European Court of Justice—for example, there could be an international dispute that turns on the employment conditions of an employee of the European Union in the form of the External Action Service. That is one area in which blurring is likely to take place.
	Let us remember how the jurisprudence of the Supreme Court of the United States developed on matters such as tax, trade and agriculture. The Supreme Court of the United States has no explicit powers to regulate tax. There is no federal power in the United States constitution that grants taxation powers to the Federal Government, and such powers were obtained by extrapolating the right to regulate trade between the states of the United States of America. On agricultural quantities, for example, there is no federal power in the United States constitution to regulate quantitative restrictions within a state of the United States of America. However, because a court has argued that what is produced in one state affects trade in another, trade provisions have been used to get into another area of the law, which is how the United States became the modern federation that it is today.
	The exclusions in these treaties have been expressly drafted to prevent such leakage of jurisdiction upwards to the federal institutions of the European Union, but I fear that it will be difficult to prevent that. Returning to the European Defence Agency, it is clear that many supporters of the EDA dream of creating a single market for defence manufacturers in the European Union. There are specific exclusions that exclude defence from the single market in the existing treaties, which will be carried forward into the new treaties. However, let us face it: what constitutes a defence good as opposed to an ordinary civil good? Let me give an example.
	We export Land Rovers throughout the world, and a Land Rover can be a civilian or military vehicle. Many of the parts used for the civilian versions are also used for the military versions. One of the exclusions from the European Court of Justice is trade. I always thought that the application of sanctions against a third country was an act of foreign policy, but the European Union does not count it as such—the application of sanctions is a trade matter, which falls under qualified majority voting and is included in the jurisdiction of the European Court of Justice and enforceable by the Court.
	Let us suppose that we had a dispute with our European partners about a major defence contract and they wanted to stop us from having an arrangement with a third country. Given the provisions that international sanctions be subject to qualified majority voting, that issue could be included. Civilian parts of the order could be included, even if they were included as military hardware.
	I should like to ask the Minister a question, if he will give me his attention. When there are disputes about the treaties, they are routinely referred to the European Court of Justice for resolution except in so far as they are excluded. Yet it is illegal to refer any dispute about the treaties to any body outside the European Union. By rule of the treaties, there are matters of international law that cannot be referred to the European Court of Justice, nor to any other international jurisdiction.
	How would such a dispute be resolved? In the end, it is inconceivable that a dispute within the EU about the treaties would not eventually and somehow be resolved by the European Court of Justice. The Court might well exclude itself from jurisdiction, but we would be relying on that self-exclusion. In the boundary areas in which foreign and defence policy overlaps with policy on trade, aid or other issues included in the existing treaty establishing the European Community, it is easy to see how the jurisdiction of the Court could be incrementally enlarged, case by case, as we have seen it operate year after year.
	Finally, I wish to return to the question of permanent structured co-operation, given that I was provoked by the Chairman of the European Scrutiny Committee. Qualified majority voting also erodes the intergovernmental character of what has traditionally been dealt with under the treaty on European Union. Permanent structured co-operation is created by a qualified majority vote of the European Council. A member state can be removed from the permanent structured co-operation under article 28E, paragraph 4—I am going back to the other numbering, which shows how confusing it is. The article states:
	"If a participating Member State no longer fulfils the criteria or is no longer able to meet the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation, the Council may adopt a decision suspending the participation of the Member State concerned."
	It goes on to say that such a decision will be taken by qualified majority voting.

Bernard Jenkin: The point is that a member state that chooses to exclude itself from the permanent structured co-operation or is excluded because it fails to satisfy the criteria to the satisfaction of other members ceases to have a veto— [ Interruption. ] The hon. Member for Linlithgow and East Falkirk (Michael Connarty) is interrupting me—

James Clappison: In mitigation towards the Chairman of the European Scrutiny Committee, will my hon. Friend join me in understanding the frustration clearly felt by the hon. Gentleman and by other hon. Members in view of the fact that in debating this clause, which is just about names, we are trying to have the detailed scrutiny of defence matters that we have been prevented from having in relation to the rest of the Bill? We feel frustrated because we are not doing our duty.

Michael Connarty: The hon. Gentleman has tried to make the same point in several speeches. He tries to delude those outside that people must be involved in the permanent structured co-operation, that they can expelled from it but that somehow they have no control over it. Article 1 of the protocol from which the hon. Gentleman quoted selectively states:
	"The permanent structured cooperation referred to in Article 42(6) of the Treaty on European Union shall be open to any Member State which undertakes, from the date of entry into force of the Treaty of Lisbon, to:"
	It then lists the provisions. It states, "shall be open to", not "shall be compelled to be part of". Will the hon. Gentleman please desist from claiming that people must join the organisation, that they can be thrown out of it and that, somehow, they have lost all control? The protocol makes it clear that permanent structured co-operation will not contradict any country's priorities in defence policy or undermine people's right to act through NATO for their common defence. It cannot be described as compulsory. If the hon. Gentleman puts that on record now, I shall let him fantasise as much as he likes thereafter.

Roger Gale: I came into the Chamber earlier—it seems like quite a long time ago now—to make a brief contribution based on my personal experience in the House, which I believe is directly relevant to clause 3, curious though that may seem. Before that, however—and before you took the Chair, Mrs. Heal—the hon. Member for Linlithgow and East Falkirk (Michael Connarty) threw down the gauntlet to my hon. Friend the Member for Hemel Hempstead (Mike Penning), which I would like briefly to pick up.
	The hon. Gentleman held aloft the document, asked, "Have you read this?" and challenged us to say which of the items in it our constituents had written to us about. Hon. Members will be pleased to hear that I do not propose to go through the entire litany, but back in the autumn I sent out 35,000 cards to my constituents, 3,500 of which were returned, which by my miserable maths makes 10 per cent., which is about 10 times more than we usually receive when we send things without a reply paid envelope. In addition, I collected 3,500 signatures for a petition calling for a referendum on the constitution, which is what the treaty is. Those people writing to me made their views very clear. They were concerned about defence, about European foreign policy, about an extension of presidential powers and, most particularly, about the loss of the veto in a whole raft of areas.
	The hon. Gentleman held up the document and asked, "Have you read this?" As you will remember, Mrs. Heal, before the summer recess we did not have access to even the draft treaty in English, so I—poor, sad soul that I am—got a copy in French and tried to read it. It was, dare I say, pretty obscure. My right hon. Friend the Member for Chingford and Woodford Green said that the document was "opaque". I would say that it is obscure. When the draft treaty came out in English, I heaved a sigh of relief and grabbed it, giving up on my miserable French, only to discover that it was just as obscure in English as it was in French—to me, at least.
	One thing shines through clause 3, however. You have sat in the Chair on numerous Committees considering various pieces of legislation, Mrs. Heal, as have I. In your years in the House, you will have experienced, as I have experienced, under—I have to say with shame—successive Governments, not just this one, a weakening of parliamentary draftsmanship. It has reached the point where increasingly lazy draftsmen write secondary powers into Bills saying that the Minister will have the right to do this or that thing by secondary legislation. There is a whole raft of potential secondary legislation that is not contained in very many of the Bills that we pass through the House. I see clause 3 as the European version of that writ large.
	Clause 3 is not about giving nation states a right to do as they see fit; it is about a right of the European Union to tell us in Parliament what we will do and enact by secondary legislation. If I am right—the Minister will no doubt clarify this when he winds up, but I believe that I am—we have failed to grasp one salient fact, as was mentioned earlier. In these Houses of Parliament, the law is the last resort and Parliament is sovereign. In many European jurisdictions, the legislature is bound up with the legal process—they are part and parcel of the same thing. If clause 3 goes through, we will find the European Court dictating to European legislators what we as United Kingdom legislators will then have to push through as secondary legislation. We shall find that we have no say over what we are enacting in many areas that are now the responsibility of this House.
	With great respect to my right hon. Friends the Members for Hitchin and Harpenden (Mr. Lilley) and for Chingford and Woodford Green (Mr. Duncan Smith), who have said otherwise, clause 3 is not unimportant. It is not the most important clause in the Bill, but it is not unimportant. It is tantamount to a Trojan horse. If it goes through, inside it and on the back of it will come whole rafts of changes that we shall have no power to resist. That is why it must not, cannot and should not stand part of the Bill.

James Clappison: I shall oppose the clause standing part of the Bill. We have had more chance to debate this matter than many other aspects of the Bill but, even so, the clause is tainted by the way in which the Government have sought to manipulate terminology, nomenclature, all the way through the process to try to disguise what is taking place. The way in which we describe something is important.
	The hon. Member for Kingston and Surbiton (Mr. Davey), speaking for the Liberal Democrats—we know that they have their problems at the moment—referred to the collapse of the pillars as being only a partial collapse. I think that that was in response to my hon. Friend the Member for Hemel Hempstead (Mike Penning), who used to be a fireman in his previous career. I do not know what a householder would have said to him if, attending a call and finding that the roof had blown off, he had said to that householder, "Never mind. You've only had a partial collapse. Your garden shed is still standing."
	The Liberal Democrats have to face up to the seriousness of what is taking place here. I know that the hon. Gentleman has had his problems on this matter, but he has to face up to the fact that major changes in foreign policy have taken place and that that pillar has been completely collapsed. There is qualified majority voting on foreign policy and, increasingly, incrementally, we are going to have a European Union-determined foreign policy.
	The same will apply to justice and home affairs. What the hon. Gentleman said about the opt-in arrangements was true, but we also heard from the hon. Member for Linlithgow and East Falkirk (Michael Connarty) about all the problems surrounding the opt-in provisions on home affairs, and about the penalty clauses that this country will face if we seek to exercise those opt-in proposals. I am not even sure that it is not the Liberal Democrats' policy to sign up wholesale to the so-called area of freedom, justice and security without an opt-in. They are not even clear on that.
	These are important matters. The problem for the Government is that this process has been tainted by the way in which they have conducted the negotiations, by the lack of opportunity that we had to scrutinise the proposals before the intergovernmental conference mandate was agreed, and by the way in which that negotiation was carried out by the former Prime Minister, as virtually his last act in office. Thereafter, we were saddled with the intergovernmental conference mandate, which was enacted almost wholesale at the intergovernmental conference in November, save for the provisions that were disadvantageous to the United Kingdom, which gave us penalty clauses in respect of the opt-in. That was a real triumph of negotiation for the Government.
	As I said earlier, what really astounds me in all this is the lack of transparency that taints this clause. I can do no better than to quote from the agreed conclusions of the European Scrutiny Committee—which is chaired by the hon. Gentleman—on the way in which the process had been tainted. It states in, I think, its most recent report, the third one of this Session, that
	"we reiterate our earlier comment that the process could not have been better designed to marginalise the role of national parliaments and to curtail public debate, until it has become too late for such debate to have any effect on the agreements which have been reached."
	Our suspicions on this matter go back to before last June, because we know that a plan was set out for the Government in the questionnaire that came from the German presidency, when exactly the course that we have seen being followed was being suggested to the Government, even though they denied having received the questionnaire. The questionnaire talked about using terminology and presentational change to disguise the fact that the former constitution was being enacted. It even went so far as to ask:
	"How do you assess the proposal made by some Member States concerning possible improvements/clarifications on issues related to new challenges facing the EU, for instance in the fields of energy/climate change or illegal immigration?"
	Was it a coincidence, Mrs. Heal, that we spent a whole day debating the subject of climate change, which is a very important subject in itself, when there was not even a proposal about climate change in the original constitution? We find that this was put forward by the German presidency as a way of tarting up the constitution to make it more acceptable to public opinion, disguising what was really going on. The process was tainted, as I said, from beginning to end and it is a disgrace to the House in every conceivable way, as we have had no proper scrutiny on matters of such substantial importance. We cannot allow any part of this to go unchallenged, because the Government simply do not deserve our trust.

Jim Murphy: The powers of the European Parliament are being strengthened in a positive way. There are 40 extensions to co-decision in the European Parliament, 30 of which apply to the UK. The other 10 will apply to the UK should we choose for them to do so. It is an important set of reforms that enshrines additional responsibilities on the European Parliament, although some of the debates in this House suggest a collective denial of the fact that European parliamentarians, including those from this nation, are elected by a democratic process. It is a step in the direction of improving the co-decision making of the European Parliament.
	It is right that we make provision in primary legislation recognising that the Lisbon Treaty increases the powers of the European Parliament. These changes are intended to strengthen the co-decision extensions. Experience suggests that co-decision leads to better legislation—the registration, evaluation and authorisation of chemicals regulation, or REACH, is a good example. The co-decision powers will not be extended everywhere, and will not apply to key strategic policy areas—such foreign and defence policy.
	Of course, some Conservative Members will oppose clause 4 and the extension of co-decision, but I am sure that in private, reflective moments they will recall that the principle was introduced by the Maastricht treaty, which made the European Parliament a true joint decision-making body for the first time. The Maastricht treaty introduced co-decision procedures in 15 separate articles, on issues such as the free movement of workers, services, internal market, education, public health, consumer protection and environmental policy. All those co-decision arrangements were introduced by the Maastricht treaty.
	Of course, the Lisbon treaty also caps the number of Members of the European Parliament at 751—down from 785 at present—and we welcome that smaller European Parliament as well. The European Parliament will elect the president of the Commission. Under new article 9d, the European Council will have to take account of the political complexion of the European Parliament when nominating a new Commission president, and MEPs will gain separate votes on the Commission president and on the college of Commissioners. Of course, that is not a new change in substance. The European Parliament's approval, which it delivers by a vote, is required now to appoint a new Commission. The new wording reflects the procedure followed during the appointment of the Barroso Commission in 2004.
	I sense from the mood of the House that hon. Members would like me to bring my comments to a conclusion— [ Interruption ]—but we still have nine minutes or so of the debate left before hon. Members perhaps seek to divide the House. I wish to give the hon. Member for Rayleigh (Mr. Francois) the opportunity to respond. I think that it is fair for me to conclude my remarks, except to say that we believe that these extensions of co-decision to the democratically elected European Parliament are an important reform. These reforms are supported by political parties across the EU. They are supported by the Governments and the main Opposition parties in all 27 countries of the EU. It would be a shame if, in the UK alone, one major political party opposed these extensions as they are now proposed as a consequence of the Lisbon treaty. With those comments, I suggest that clause 4 remain part of the Bill.  [ Interruption. ]

Sylvia Heal: Order. Far too many private conversations are going on in the Chamber. The House must come to order.

Mark Francois: My right hon. Friend refers to the disgrace of the timing; we have five minutes left in which to debate clause 4, and we will have no time at all to debate clause 5. We will not even reach it because of the way in which the Government have rigged the debate on the treaty, time and again.
	I want to make some quick points about the need for better regulation on the part of the European Parliament. It is a problem that the European Parliament's structure and machinery is entirely dedicated to processing new legislation. Conservatives have long pressed for that Parliament to have instead mechanisms to monitor implementation of existing legislation, and to be able to propose the repeal of legislation, but those proposals have never been actively taken up by the Government. The European Parliament has a string of legislative committees, but no deregulation committee. I ask the Minister—when I have his attention—to consider that proposal in the context of tonight's debate, and any avenues that there might be for pressing it forward.
	There is one other matter that I have to mention: the farce of the two seats. The European Parliament spends £120 million annually commuting, for one week a month, to Strasbourg from Brussels. In 2006, more than 1 million people signed an online petition calling for an end to Parliament meetings in Strasbourg. Independent studies have calculated that the Strasbourg commute, as it is known, generates 20,000 tonnes of additional carbon dioxide emissions a year, yet far from acknowledging that the situation is clearly unsustainable, the European Parliament is currently negotiating to buy its buildings in Strasbourg from the French Government at a cost to the taxpayer of many hundreds of millions of euros.
	The decision to abandon Strasbourg can be taken only by EU Governments, but the UK Government have repeatedly refused to raise the issue proactively at European Union meetings. It cannot be right that the European Parliament continues to commute from Strasbourg to Brussels, and Brussels to Strasbourg, at a massive cost to the taxpayer, and a great cost to the environment. That should have been put right many years ago. We are debating the European Parliament now, but why have the Government remained so completely silent on the matter? They have been in power for 10 years; why have they not done something about it?
	Let me conclude by saying that it is a shame that more Members of the House will not be able to air their views on clause 4 and on the operation of the European Parliament. In fairness, that is not the fault of the European Parliament or the UK Parliament, but of the Government, who have rigged the debate so that such issues cannot adequately be discussed. They have timetabled debate on the treaty in a way that does not give us the line-by-line scrutiny that we were promised. In lieu of that, they should be held accountable by the British people, and should give them the referendum that they promised.

Edward Davey: The Liberal Democrats totally support clause 4, mainly for a reason that the Conservatives have not touched on: increasing democracy in the European Union has to be a good thing. It seems quite extraordinary—
	 It being six hours after the commencement of proceedings in Committee, The Second Deputy Chairman put forthwith the Question already proposed from the Chair, pursuant to Order s [28 January and this day].

Robert Flello: May I begin this debate by making it clear that the idea behind Warm Front is excellent, and that I have tried over a long period to get acceptable answers to the questions raised by my investigations so that I would not need to raise the matter in the House?
	Warm Front has the laudable objective of ensuring warm houses for the most in- need citizens of our country, backed by £2,700 of funding per household from this Labour Government, but something has gone very wrong. Over the course of the past year, the trickle of complaints coming to my desk has turned into a flood of complaints. People came forward with case after case where they were asked to contribute between £200 and almost £1,000 on top of the generous Government grants to have work done.
	Initially, I thought that my constituents were getting a complete heating system for the money. After all, I can go out in Stoke-on-Trent and engage a CORGI-registered plumber to fit a combi boiler and half a dozen radiators for about £3,000. But no, they were getting a boiler and, generally, just one radiator. I thought that perhaps the boiler concerned was a top-of-the-range combi boiler, but again, despite official correspondence telling me that the best materials are used, I found that the boilers in question are not those instant-hot-water types, but a bog-standard, heat-a-tank-of-water sort, and certainly not a high-specification one. Indeed, having finally got the breakdown of material and labour costs, I found that the cost of the materials was not that great—quite reasonable, in fact.
	I inquired, and was told that the workmanship was of the highest quality, and that extra work, such as the removal of any back boiler, must be done as part of the scheme. But that, too, was shown to be incorrect. It seems that the charge is £2,700 plus, whether back boilers are removed or not. The work is not consistently of the highest quality and, when the costs are looked at in detail, it seems that the contractors are charging about £1,000 for labour each day. I know that plumbers demand a high price—much higher than MPs—but £1,000 a day just for fitting? When I asked, I was told that the work was guaranteed, that there is a rigorous inspection regime and that if there were any problems, the work would be put right. Forgive me, but if I engage a local plumber and the work is not good enough, I expect them to come back and put it right, and I do not expect to pay extra to have that guarantee.
	Now might be a good moment to illustrate my point with an example. Mr. Degg, one of my constituents, contacted me, like so many others, about the work he had done. For the princely sum of £2,914.73, he did not have a combi boiler and six radiators fitted, which a local firm gave me a quote for, but a bog-standard condensing boiler and one radiator. The fitter turned up, saw how little work there was to do, ate his breakfast and disappeared for the morning, returning at lunch time. Mr. Degg knows a thing or two about plumbing and asked about the power flush that accounts for up to £500 of the costs of the job. The fitter laughed and said that it was not necessary. When the boiler and all the bits were fitted, my constituent complained about the poor brick work, where the flue went through the wall. That was not done satisfactorily and, in the end, Mr. Degg had to rebrick it himself. When the inspector came to examine the work—as I was told in official correspondence, the highest inspection regime pertains—and was told about the power flush and all the other problems, he said that all he could do was send an e-mail. There is not much value in that costly benefit. Sadly, Mr. Degg's experience is not a one-off.

Kevan Jones: I congratulate my hon. Friend on getting the debate. A constituent returned to my surgery on Saturday. She said that she had her boiler replaced and valves put on the existing system for more than £2,000. She is a pensioner and she got quotes from different companies. The highest quote was £1,500 from a local firm. Does my hon. Friend agree that many people are not asking questions, but those who are, including Mrs. Young and others in my constituency, are dissatisfied not only with the work but the fact that Eaga might be ripping off the Government?

Phil Woolas: Congratulations are due to my hon. Friend the Member for Stoke-on-Trent, South (Mr. Flello) on securing this debate on the Warm Front scheme. The number of Members who have intervened on him has added to the seriousness of his questions and his criticisms. I am grateful to all the hon. Members who have taken part in the debate.
	I want to outline the good things about the scheme, as my hon. Friend and others did, but let me reassure the House that I take these issues extremely seriously. This is an important scheme for many hundreds of thousands of vulnerable people, and it is my pledge to the House that I will of course carry on looking into these problems and criticisms.
	Perhaps, Mr. Deputy Speaker, you would allow me to say—as have other hon. Members, including my hon. Friend the Member for Stoke-on-Trent, South—what is particularly pleasing about the scheme. It is because we value the scheme so dearly that it is so important to reinstate its integrity in the eyes of right hon. and hon. Members who have raised this issue.
	The Government were the first in the world to set a target for the eradication of fuel poverty. We recognised that one of the key ways of making progress towards that was to support vulnerable households by providing efficient heating and insulation measures. That has been done on an unprecedented scale. Since the Warm Front scheme began in 2000, more than 1.6 million households have received assistance and this year we anticipate helping a total of around 240,000 households with some 100,000 receiving a heating measure: that could be replacing an old heating system or providing—in many cases, for the first time—central heating in the home. That significant action helps to mitigate the risk of those households struggling to keep warm at an affordable cost—a vital part of our work to help those vulnerable households to improve their quality of life.
	We should also not overlook the value of the Warm Front scheme in reducing household carbon emissions. Saving energy is saving money for the household as well as cutting the amount of carbon, and we estimate a cut of about 500,000 tonnes of carbon.
	In response to the debate, I would like to outline some of the measures and mechanisms in place to ensure that Warm Front delivers a high quality of service to those who come for assistance. I cannot deny that sometimes the customer's experience is not as good as we would all like. That is something we in the Department for Environment, Food and Rural Affairs and Eaga in its role as scheme manager continue to focus on.
	I am aware of the concern about the prices charged for Warm Front heating installations that has been expressed here this evening and elsewhere, and it is right that there should be an interest in seeing that we make the best use of the funding available to us in order to protect taxpayers' money and, of course, help as many households as possible. Let me explain the pricing system.
	The prices charged for Warm Front heating measures have been set on a regional basis, following an open and fully competitive procurement process. Installers in each region supplied tenders, outlining for how much they could perform each aspect of the installation work. Of those, the strongest tenders were chosen and they were used to set the prices for the scheme.

Rosie Cooper: At the same time as examining those matters, will the Minister consider whether people could exercise choice on the high street to get a plumber to do the work at acceptable standards at a much reduced cost, which would enable DEFRA to help more people to beat heat poverty and get the heat that they need?

Phil Woolas: The first point can be addressed by saying that the tendering process for contracts is on a regional basis— [Interruption.] Some of the cases that I have looked at involved company addresses that were some miles away, but local depots were being used. As far as I am aware—I choose my words carefully—none of the companies that have suggested that they could carry out the work adequately for a lower price than charged under the scheme put in tenders during the process. I am not saying that the situation is perfect, but I think we need a dose of realism when it comes to some of the accusations that are made,